Staff
received an email from District Court Judge Donovan Foughty. Judge Foughty
attached a copy of a memorandum opinion and order regarding a discovery issue. Judge
Foughty said it does not appear the law is clear in North Dakota on what is and what is not
privileged between an attorney and an expert witness that might be called at trial. In the
case, the plaintiff sought discovery of all communication between the defendant's attorney
and his expert, and documents disclosed to the defendant's expert witness. The defendant
opposed discovery of the items claiming they contained protected attorney work product.

The memorandum contains discussion noting that Fed.R.Civ.P. 26 was
amended in 1993,
which added mandatory disclosures on testifying experts. See Fed.R.Civ.P. 26(a)(2).
North
Dakota did not adopt the 1993 federal amendments dealing with mandatory disclosure. The
Committee discussed the federal amendments and agreed that there should not be any
automatic disclosures. SeeMinutes of the Joint Procedure Comm., p. 22
(September 29-30,
1994). In 1995, the Committee adopted an amendment to Rule 26 allowing depositions of
expert witnesses without court authorization unless the deposition would be "unnecessary,
overly burdensome or unfairly oppressive." SeeMinutes of the Joint Procedure
Comm., pp.
11-12 (January 26-27, 1995).

The memorandum notes many federal courts have held that amended
Fed.R.Civ.P.
26(a)(2)(B) requires the production of any document that a party's attorney has given to the
expert, concluding that by giving it to the expert the attorney work product doctrine has
been waived. The memorandum also states that while the majority of federal courts interpret
Fed.R.Civ.P. 26(a)(2)(B) as requiring production of any document regardless of any attorney
work product, there are several courts that continue to hold the pre-1993 amendment view
that some attorney work product and other previously confidential information shared with
an expert need not be disclosed to an opposing party.

The district court agreed that attorney work product, including mental
impressions, legal
theories and attorney opinion are entitled to protection under N.D.R.Civ.P. 26(b)(4). The
court stated that its opinion is in conformity with the text of the rule itself, North Dakota
Supreme Court case law, cases from courts within the jurisdiction of the Eighth Circuit, and
persuasive authority interpreting the corresponding federal rule similarly. The court allowed
discovery of billings and invoices prepared by the defendant's expert, along with a list of
discovery documents and materials that the defendant's attorney told his expert to
specifically look at after employing the expert's services.

In his email, Judge Foughty did not propose an amendment or request
that Rule 26 be
amended. His email and attached memorandum opinion pointed out that the law on what
is and what is not privileged between an attorney and an expert does not appear to be clear
in North Dakota.

The
Committee may wish to consider whether it wants to amend Rule
26 to address the
issue of privilege between an attorney and an expert witness. A portion of Judge Foughty's
memorandum opinion and order is attached along with a copy of Rule 26, as previously
amended by the Committee, and Fed.R.Civ.P. 26.